Marcy Johnson v. West Publishing Corporation

Filing 7

28(j) citation filed by Petitioner West Publishing Corporation w/service 12/22/2011 - FOR CAL. [3862558] [11-8020] (KMW)

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Reed Smith LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222-2716 +1 412 288 3131 Fax +1 412 288 3063 Kim M. Watterson Direct Phone: +1 412 288 7996 Email: December 22, 2011 Mr. Michael E. Gans, Clerk of Court United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis, Missouri 63102 Re: Marcy A. Johnson v. West Publishing Corporation Case No. 11-8020 Dear Mr. Gans: Pursuant to Federal Rule of Appellate Procedure 28(j), West Publishing Corp. submits Cook v. ACS State & Local Solutions, Inc., No. 10-3818, --- F.3d ---, 2011 WL 6221645 (8th Cir. Dec. 15, 2011), a recent decision of this Court affirming the dismissal of claims under the Driver’s Privacy Protection Act (enclosed). This Court’s interpretation of the DPPA in Cook directly addresses the statutory construction questions involved in the district court’s order denying West’s motion for judgment on the pleadings that West’s has asked this Court to review pursuant to 28 U.S.C. § 1292(b). Indeed, Cook’s controlling interpretation of the DPPA requires reversal of the district court’s order and the entry of judgment in favor of West. Cook, therefore, supports West’s request for interlocutory review of the district court’s order. More specifically, the legal question West seeks to have this Court review is: Did the district court err in concluding that bulk obtainment of motor vehicle information for resale for DPPA-permitted uses constitutes a per se violation of the DPPA? See Petition at 3. This Court’s opinion in Cook answers that question in the affirmative and, consequently, the district court’s order must be reversed. Based on a NEW YORK  LONDON  HONG KONG  CHICAGO  WASHINGTON, D.C.  BEIJING  PARIS  LOS ANGELES  SAN FRANCISCO  PHILADELPHIA  PITTSBURGH OAKLAND  MUNICH  ABU DHABI  PRINCETON  NORTHERN VIRGINIA  WILMINGTON  SILICON VALLEY  DUBAI  CENTURY CITY  RICHMOND  GREECE Mr. Michael E. Gans December 22, 2011 Page 2 careful examination of the DPPA’s language and the relevant legislative history, this Court held: “Section 2721(c) explicitly permits the resale of drivers’ information, and it does not require that resellers must first use the information themselves. We hold that Plaintiffs cannot establish a DPPA violation by alleging that Defendants obtained personal information with the sole purpose of selling it to third parties who have permissible section 2721(b) uses for the information.” Slip op. at 12-13 (citations omitted). West asks that this Court grant its Section 1292(b) petition, vacate the district court’s August 3, 2011 order, and hear West’s appeal. West further suggests that expedited briefing and summary consideration are appropriate in this case. Very truly yours, /s/ Kim M. Watterson Kim M. Watterson KMW/hh Enclosures cc: All counsel of record

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